Citation Nr: 21005089 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-24 139 DATE: January 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, depressive disorder, and posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that any current acquired psychiatric disorder manifested during, or as a result of, the Veteran’s active duty service. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus that began during active service, or is otherwise related to an in-service event, injury, or disease; or manifested to a compensable degree within the applicable presumptive period, and continuity of symptomology is not established. 3. The preponderance of the evidence is against finding that the Veteran has a hearing loss disability that began during active service, or is otherwise related to an in-service event, injury, or disease or manifested to a compensable degree within the applicable presumptive period, and continuity of symptomology is not established. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder to include as due to military sexual trauma (MST) have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304(f). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1977 to June 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel Board hearing before a now retired Veterans’ Law Judge (VLJ) in May 2017. A transcript of the hearing has been associated with the claims file. In November 2020 correspondence from the Board the Veteran and his representative were notified that the VLJ who presided over his May 2017 hearing was no longer employed by the Board, and he could request another Board hearing. The Veteran nor his representative has not requested another Board hearing. Previously, the claims were before the Board in January 2020 and were remanded for additional development. The Board finds the prior remand directives have been completed and the claims are again properly before the Board. Outstanding VA treatment records have been associated with the claims file, A request for treatment records from Vet Center was made in January 2020. The Veteran was notified of such as well as the remand directives action and undergoing development in January 2020 and March 2020 written correspondence. The Veteran was scheduled for VA examinations in June 2020, for which he failed to appear. The Veteran was provided written notification of the failure to appear at the VA examinations in the September 2020 supplemental statement of the case (SSOC). Given the AOJ actions and the Veteran’s choice not to submit to the June 2020 examinations, the Board finds that VA has no remaining duty with regard to obtaining a medical examination and opinion in conjunction with the Veteran’s service connection claims. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). As such the Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 C.F.R. § 3.655 (b) Original or reopened claim, or claim for increase: “when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.” Applying 38 C.F.R. § 3.655 (a) and (b) to the facts of this case, as the Veteran failed to report for VA examinations without good cause, the regulation states that the Veteran’s claim “shall be rated based on the evidence of record.” The Veteran’s claims for service connection will be discussed in greater detail below and rated based on the evidence of record as the Veteran's claims are all original compensation claims. Evidence The Veteran’s service treatment records (STR’s) have associated with the claims file. During the Veteran’s November 1976 examination, he reported that he, had had stitches in his head. See April 2014 STR-Medical, p.44. In a July 1977 court-marital order, it was noted that the Veteran was charged with stealing coins with a value of $17.00 and postal stamps with a value of $19.57. The Veteran was ordered to repay the amount and sentenced to four months of hard labor. See December 2015 Military Personnel Record. In August 1977, the Veteran was given a report of medical examination. The clinical evaluation the head, ears and drums and psychiatric issues were normal. However, the Veteran reported that he had at the time or in the past had a head injury and depression or excessive worry. But the Veteran denied ever having hearing loss and there was no mention of tinnitus. The examination noted that the Veteran had minor head injuries and had stitches,but it was noted that the Veteran had to get stitches in his head during his entrance examination. See April 2014 STR-Medical, p. 45;47 In a December 1979 STR, a clinician noted there was no pain in the Veteran’s ears but he had mild bilateral swelling. See April 2014 STR-Medical, p.36. In a June 1980 report of medical discharge examination, the clinical evaluation was normal for any ear, nose ans throat or head or psychiatric issues. In addition, the Veteran stated to the best of his knowledge he was in great physical health. The Veteran denied ever having a head injury, hearing loss, depression or excessive worry or nervous trouble of any sort. Also, there was no mention of tinnitus or a sexual assault. See April 2014 STR-Medical, p.14;16. In November 2012, the Veteran was hospitalized for a suicide attempt after an incident with his girlfriend; such was after a recent prior hospitalization for another attempt related to the same reason. The Veteran’s diagnosis upon entrance and discharge of this hospitalization included bipolar disorder, depressed episode, severe with psychosis and alcohol dependence. See October 2013 Medical Treatment Record-Non-Government Facility, p.1;4. In a November 2012 psychiatric progress note, the Veteran was seen for diagnosis of bipolar disorder, depression, alcohol abuse, nicotine dependence and poor social environment support. The Veteran reported that he had significantly better sleep the night before and more energy that morning. The Veteran indicated that his depression had improved from an 8/10 to a 6/10. The Veteran denied suicidal/ homicidal thoughts. See July 2013 Medical Treatment Record-Government Facility, p.1. In a December 2012 VA treatment note, the Veteran reported problems with depression and that he had a suicide attempt a month prior due to an emotionally and physically abusive 8-year relationship with his girlfriend. The Veteran indicated once he left his treatment program that he was not returning back to his girlfriend and was going to live independently. The Veteran stated that he had been diagnosed with depression 7 years prior (2005) and his most recent problems with increased depression was in October 2012. In addition, he stated he had a suicide attempt in October 2012 and another attempt 2 years prior, which he was hospitalized for. Furthermore, he indicated that he had been diagnosed with bipolar disorder and reported symptoms of racing thoughts, and increased energy which lasted 2-3 hours. Also, he reported being homeless for years. The Veteran reported that as a child his father abused him emotionally and physically. The Veteran reported that he served in the Army on active duty from 1977 to 1980 and on inactive duty from 1980 to 1983. However, the Veteran denied being exposed to combat or being sexually assaulted in the military. The Veteran also denied any disciplinary actions charged against him while in the military. However, as noted above the Veteran contradicted himself because in a December 2012 statement, he submitted indicating that he got in trouble while in Boot Camp and was sent to prison for 90 days. The Veteran also stated that while in prison he was sexually assaulted, reporting that he was gang raped. See July 2013 Medical Treatment Record-Government Facility, p.5;6. In December 2012, the Veteran submitted a statement. The Veteran reported that he was placed in his mother’s custody at 16 years old; after enduring years of physical, psychological and verbal abuse from his father. He indicated that his mother died a month after he was enlisted into the Army. The Veteran stated he went to Boot Camp in March 1977, got into trouble and was sent to prison for 90 days, where he was gang raped four times. The Veteran reported that he did not report the rapes because the people who assaulted him, threatened to kill him. The Veteran noted that he was married from 1982 to 1986 and had three kids but had not seen his kids for 20 years. Since his marriage, he stated that he had 7 failed relationships due to his bipolar disorder, depression and traumatic experiences in prison. The Veteran stated that he tried to commit suicide twice within those last three years due to feeling hopeless, depressed, and due to anxiety and psychotic episodes that have destroyed his life. See December 2012 VA 21-4148 Statement in Support of Claim. In March 2013 a letter was submitted by a clinical social worker. The social worker indicated that the Veteran had been admitted to a domiciliary residential rehabilitation treatment program in November 2012; a program for homeless Veterans who suffered from mental and physical disabilities and addictions. The social worker indicated that the Veteran was working on improving his symptoms of military sexual trauma (MST) and PTSD recovery. The Veteran was diagnosed with PTSD related to military sexual trauma and bipolar disorder/ depression which impacted his life. See March 2013 Third Party Correspondence. In June 2013 the Veteran was afforded a VA hearing loss and tinnitus examination. The examiner reviewed the claims file and considered the Veteran’s lay accounts; and obtained an audiogram and speech recognition test. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 30 30 20 20 40 28 LEFT 20 15 15 15 25 18 Speech recognition ability was 88 percent in the right ear and 96 percent in the left ear. The audiologist provided a diagnosis of sensorineural hearing loss in the right and left ear at 500-4000 Hz range. The examiner concluded that it was less likely as not the Veteran’s hearing loss was related to service. The rationale was that the Veteran’s enlistment and separation examination were normal for hearing loss bilaterally. Further, the examiner noted no significant threshold shifts bilaterally during service. The examiner noted that at separation there was no evidence of hearing loss, and based on a review of the medical literature there is no scientific basis to support the delayed onset of hearing loss based on review of the Institute of Medicine landmark study on military noise exposure. The Veteran’s hearing loss did not impact his ordinary conditions of daily life, including work. During the same examination, the Veteran reported recurrent tinnitus. The Veteran indicated that the tinnitus had its onset in 1977 and was worse in the right ear. He described the tinnitus as ringing possibly due to trauma to the right ear. The examiner found that the Veteran’s tinnitus was at least as likely as not a symptom of his hearing loss. The examiner further stated that tinnitus was not caused by noise exposure in-service but did not rule out the condition being associated with other conditions associated with military service. In addition, the examiner incorrectly indicated that the Veteran could not give the time or course of tinnitus since he was not competent to give an etiology. The examiner noted that there is no compelling evidence of record to support the onset of tinnitus in the absence of hearing loss. A review of the scientific literature noted such is noted supported, even in consideration of the Veteran’s statements. In a June 2013 VA treatment record, the Veteran was diagnosed with PTSD. See July 2013 Medical Treatment Record-Government Facility, p.40. In a June 2013 audiology note, the Veteran reported bilateral hearing loss with an onset of 1977. The Veteran indicated that his greatest difficulty was when he had certain conversations. The Veteran denied any history of otologic disease or otologic surgery and indicated that he had a right ear injury in 1977. The Veteran also reported that he had tinnitus with an onset of 1977 and described ringing following trauma to his right ear. He also stated that he experienced dizziness (off-balance) occasionally. The Veteran’s audiological diagnostic results where the same as his June 2013 VA examination test results. The audiologist noted the Veteran had mild to moderate sensorineural hearing loss in the right ear and normal hearing in the left ear. See July 2013 Medical Treatment Record-Government Facility, p.64. In July 2013, the Veteran provided another statement. The Veteran stated he had PTSD related to military sexual trauma, depressive disorder NOS, bipolar disorder, right ear hearing loss and tinnitus. He indicated as a result of his military service including a gang rape; that he experienced depression, anxiety, mood swings, right ear hearing loss and flashbacks. He stated that while he was working in the kitchen in-service, he was gang raped by several men. The Veteran said during the altercation he banged the right side of his head on pavement and was struck in his right ear several times. Since the incident, he stated that he experienced hearing loss, tinnitus, depression, anxiety, mood swings and flashbacks. However, the Board acknowledges the statement is different from his March 2013 statement, where the Veteran reported that he was gang raped in-service while in prison for 90 days on four different occasions. In December 2013, the Veteran submitted a notice of disagreement (NOD). The Veteran reported that he tried to commit suicide several times including in 1981 when he attempted to drown himself but was saved by a friend. The Veteran stated he attempted suicide due to severe depression and PTSD after being gang raped in prison. The Veteran stated that he reported the incident to a prison guard and tried to be moved to a different wing but instead was moved to a different cell and was not protected. The Veteran stated he could not report the event for 36 years because he was ashamed and was mentally and physically traumatized. The Veteran further stated that he was never given a VA examination to explain himself, and the first time he felt comfortable talking about the trauma was when he reported the incident to a professional. He also stated he did not share before because there were women staff at another facility, and he had a hard time talking to women about the incident; but felt comfortable with the male psychologist he spoke with. The Veteran also stated that his hearing loss and the ringing in his ears came from being punched repeatedly in his head while he was raped. He stated the hearing loss was mostly in his right ear and sometimes it sounded like an echo in his right ear. See December 2013 Correspondence. In a December 2013 statement, the Veteran stated after he got off work in the kitchen while in prison, a blanket was suddenly thrown over his head. He said he was then grabbed and dragged into a cell where he was raped by several men. One guy told him to shut up or he would kill him as he punched him in the head and showed him a shank. See December 2013 Correspondence. In May 2017, the Veteran attended a Board hearing before a now retired VLJ. During the hearing the Veteran’s representative indicated that the Veteran had been diagnosed with MST and PTSD although the statement of the case indicated that there was no diagnosis. The Veteran stated that the events that caused his injuries in service were when he was sentenced to 90 days hard labor for destroying a stamp machine. The Veteran stated that he was assigned kitchen duties while there but once he returned, he was jumped and covered with a blanket, pushed into a cell and then raped by four men. The Veteran had a blanket covering his face but stated he thought it was four men due to different penetrations, so he assumed it was four men. The Veteran stated he did not seek medical attention because they threatened to kill him; but he had knots on his head and anal injuries. The Veteran stated he did not have any bleeding but had issues with bowel movements. The Veteran indicated that he asked to be moved to another wing, but he was only moved to the other side of the tier. The Veteran indicated that there was no documentation in his records because he was 18 years old and scared. The Veteran stated he experienced psychiatric symptoms of segregating himself, being a loner, he always looked around, always on threat assessment, he did not sleep well, had nightmares and experienced flashbacks. The Veteran indicated he still experienced such symptoms and first sought treatment in 2012 after a suicide attempt. In terms of the Veteran’s right ear hearing loss, he stated he first noticed it after the rape. The Veteran testified that the hearing loss did not interfere with his job but felt that his ear was plugged. He stated the issue continued since service and he has experienced ringing in the ear. The Veteran testified he had tinnitus since the rape in-service, and it continued since service. The Veteran testified that his hearing had worsened since his last examination in 2013. The Veteran stated that the ringing was daily multiple times a day. The Veteran stated the condition would sidetrack him and he would have to stop and hold his ear. The Veteran denied left ear tinnitus. See May 2017 Hearing Transcript. In a June 2017 VA treatment note, the clinician noted the Veteran had alcohol dependence in partial remission, bipolar disorder and PTSD related to housing and economic circumstances. See Capri, p.27. In July 2020 email correspondence, it was noted that the Veteran failed to show for his appointments scheduled at the end of June. In September 2020, a VA addendum opinion was submitted. The examiner found that it was less likely than not that the Veteran had tinnitus that was caused by the claimed in-service injury, event or illness. The rationale was that while the Veteran was in-service he worked as a radio teletype which had a moderate probability of noise exposure. In addition, the examiner noted that hearing was within normal limits at entrance and at separation. With no significant threshold shifts noted from entrance to separation. In addition, the examiner noted that noise exposure and head trauma was conceded based on a 1977 medical examination, but there was no objective evidence of a nexus. In addition, the Veteran went 33 years after service before complaining of tinnitus. The examiner noted that a review of the medical literature and noted that hearing loss and ENT problems are not mentioned on the Veteran’s 1977 and 1980 exams, and as such a nexus is not established for tinnitus. The examiner noted that based on a review of the medical literature the notion of delayed onset tinnitus is not supported by the current literature. The examiner noted that per Humes “As the interval between the exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. A more complete understanding of the mechanisms by which tinnitus is generated will be needed for the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected (2005).” As such the examiner found that it is less likely than not that the Veteran’s tinnitus is related to service. As to hearing loss the examiner noted that it is less likely than not that the Veteran’s current hearing loss was incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran’s MOS as a radio teletype operator has a moderate probability of hazardous noise exposure. The examiner further noted that at entrance to service the Veteran’s hearing was within normal limits bilaterally and at separation in June 1980, his hearing was also within normal limits with no significant threshold shifts. Current hearing loss was previously been established in the right ear. As to the Veteran’s left ear hearing loss the examiner found that it is less likely than not the result of hearing loss in-service. While the examiner noted that noise exposure in-service and a heard trauma in-service has been conceded it is less likely than not that the Veteran’s left ear loss was a result of in-service trauma. The examiner noted that the Veteran’s hearing was within normal limits until 33 years after separation from service. As to the Veteran’s reported right ear hearing loss, the examiner found that it is less likely than not that the Veteran’s right ear hearing loss is related to service. No significant threshold shifts were noted in-service, and while there was an incident of head trauma in August 1977 examination noted no mention of hearing loss or tinnitus. Further at separation there was no mention of hearing loss or tinnitus. Further, based on a review of the medical literature according to the Noise and Military Service Implications for Hearing Loss and Tinnitus, “No Longitudinal studies have examined patterns of hearing loss in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of noise exposure. The Committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely (2005).” The examiner also noted that this study goes on to say “The evidence from laboratory studies in humans and in animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days.” Further the examiner noted, a recent publication from the American College of Occupational and Environmental medicine states that there is insufficient evidence to support that “previously noise exposed ears are not more sensitive to future noise exposure (2018).” They also go on to state: “There is insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued. This is primarily based on a National Institute of Medicine report which concluded that, on the basis of available human and animal data, it was felt unlikely that such delayed effects occur (2018).” As such the examiner found the notion of delayed onset of hearing loss is not supported by the current medical literature and a nexus is not established for either right or left ear hearing loss. Acquired Psychiatric Disorder The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include PTSD and as due to MST. A claim predicated on MST falls within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran alleges. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013); Patton v. West, 12 Vet. App. 272 (1999). Relevant regulations stipulate that, if a PTSD claim is based on in-service personal assault, evidence from sources other than a Veteran’s service records may corroborate his or her account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Id. The United States Court of Appeals for the Federal Circuit observed that 38 C.F.R. § 3.304(f)(5) (previously codified at §§ 3.304(f)(3) and (f)(4)) specifically states that a medical opinion may be used to corroborate a personal assault stressor, noting “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the [Court] erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor). The Veteran has a current diagnosis of PTSD, alcohol dependence, bipolar disorder, and nicotine dependence. VA treatment records reveal the Veteran has been treated for these conditions on an ongoing basis including from 2012 forward. However, the Veteran’s acquired psychiatric disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and is not related to service with a continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with bipolar disorder, depression, alcohol abuse, nicotine dependence and poor social environment support until November 2012 and did not endorse MST until a December 2012 statement. In addition, the Veteran did not report MST to a medical provider until March 2013, decades after his separation from service and decades outside of the applicable presumptive period. Furthermore, the Board acknowledges the Veteran’s consistent statements of MST; however, the Veteran only provided lay evidence. Further, the Board notes that while the Veteran has consistently reported an MST in-service, he has failed to provide corroborating evidence of such. There was no evidence of record indicating that the Veteran requested to be transferred after the incident, statements from relatives, friends or military colleagues of changed behavior. The Veteran stated that he was that he told a security guard when he requested to be moved but there is no evidence of the encounter and the security guards name was not provided. The Veteran was given notification of examples of additional corroborating evidence in March 2018 and May 2018 and what was necessary to help substantiate his claim. VA treatment records also reflect a diagnosis of PTSD, however as noted in the Board’s prior remand it was unclear whether this was rendered under the DSM-V. Service connection for a psychiatric disability to include PTSD may still be granted on a direct basis; however, the preponderance of the evidence is against finding a corroborated stressor or that a medical nexus exists between the Veteran’s diagnosed psychiatric disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board has thoroughly considered the Veteran’s contentions including his testimony in May 2017. While the Veteran believes he has a psychiatric disability related to an in-service injury, event, or disease, including military sexual trauma, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). While the Veteran may be competent to report symptoms over the years, he is not competent to render a clinical diagnosis, particularly a self-diagnosis made in retrospect. As noted above, the Board remanded the claim for a VA examination to clarify the diagnosis and provide evidence necessary to substantiate the claim and the Veteran did not report for the examination. The Veteran failed to report for a scheduled VA examination, thus, a nexus could not be established. The Board finds without good cause the Veteran failed to appear at the June 2018 and June 2020 VA examinations for an acquired psychiatric disorder, and failed to provide good cause for his absence. Further, in the prior January 2020 remand the Board provided the Veteran notice regarding his prior failure to appear and VA’s duty. After this remand and notification to the Veteran he failed to appear at the June 2020 VA examination. The Veteran was provided written notice of such as part of the October 2020 SSOC. No explanation has been presented by the Veteran or his representative as to why he failed to report for the June 2020 VA examination. As such the Board finds that the Veteran failed to report for the requested VA examination and good cause for such failure to report was noted shown. As noted above, applying 38 C.F.R. § 3.655 (a) and (b) to the facts of this case, as the Veteran failed to report for VA examination without good cause, the regulation states that the Veteran’s claim “shall be rated based on the evidence of record.” The Veteran’s claim for service connection for an acquired psychiatric disability was an original compensation claim and will be decided based on the evidence of record. After consideration of all the evidence of record the Board finds that the preponderance of the evidence is against finding that service connection is warranted as the Veteran’s current acquired psychiatric disorder is not related to service. The Board noted that the medical evidence is more probative and credible than the lay opinions of record. At separation on the report of medical examination clinical evaluation of the Veteran was normal. Further on the report of medical history in June 1980 the Veteran denied any ongoing mental health symptomology. Further, the Board finds that these VA examinations were necessary to decide his service connection claim. Consequently, there is no probative evidence of record to establish a nexus between a psychiatric disability and service. After a full review of the record, the weight of the evidence demonstrates that a psychiatric disability did not have its onset in service, was not manifest to a compensable degree within one year of separation from service, and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Hearing Loss and Tinnitus The Veteran contends that he is entitled to service connection for hearing loss and tinnitus, due to a head injury in-service during a sexual assault. The Veteran’s form DD-214 indicates that his military occupation specialty was as a radio teletype operator, which has moderate noise exposure. Therefore, in-service nose exposure is conceded. As such the Board finds an in-service event. However, as noted above, hearing loss is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The weight of competent, credible and probative evidence is that the Veteran does not have hearing loss in the left ear that meets the VA criteria for disability at any time during the period of the appeal. However, he was found to have hearing loss in his right ear. The Board considered the statements and testimony of the Veteran and his representative that he is entitled to service connection for hearing loss but assigns low probative weight as they are not shown by the record to have the skills, education or expertise to diagnose hearing loss and the report of sensed hearing loss is not consistent with the test measurements, at least to determine the level required for VA disability. See Jandreau, supra. As such, the Board finds the June 2013 VA examination and the September 2020 examination to be of greater probative value. Therefore, the Board must deny the claim of service connection for hearing loss. Further, the Board notes at the May 2017 hearing the Veteran testified to a potential worsening of his hearing loss. The Veteran was scheduled for VA examinations in April 2018 and June 2020 for which he failed to appear. The Veteran’s claims were most recently remanded in January 2020 to provide him an additional opportunity to appear at a VA examination. The Veteran then failed to appear at the June 2020 VA examination, and has not presented good cause for the failure to appear. The Board finds that good cause has not been shown for the Veteran’s failure to report for his scheduled examination. There is also no indication that the Veteran did not receive notice of the examination, and he has not requested the VA examination be rescheduled. Specifically, in the September 2020 supplemental statement of the case (SSOC) the Veteran was provided written notice of the failure to attend the June 2020 VA examination. Given the AOJ actions and the Veteran’s choice not to submit to the June 2020 examination, the Board finds that VA has no remaining duty with regard to a medical examination and opinion in conjunction with this claim. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) Applying 38 C.F.R. § 3.655 (a) and (b) to the facts of this case, as the Veteran failed to report for VA examination without good cause, the regulation states that the Veteran’s claim “shall be rated based on the evidence of record.” The Veteran's claim for service connection for hearing loss and service connection for tinnitus were both an original compensation claim and will be decided based on the evidence of record. Turning to the elements of service connection, with respect to the matter of current disability, the June 2013 VA audiologist and September 2020 VA audiologist (addendum opinion) diagnosed the Veteran with tinnitus. This evidence meets the current disability requirement for service connection. As noted above the Veteran has been diagnosed with right ear hearing loss previously. As noted above, the Veteran has not met the criteria for a VA hearing loss in the left ear. With respect to the in-service injury or disease requirement the Veteran did not provide any evidence other than lay statements indicating when he was sexually assaulted, he was hit in the head repeatedly; which caused him to immediately have hearing loss and tinnitus. In addition, the Board finds that the Veteran was likely exposed to moderate noise during service. As the Board has already conceded hazardous noise exposure an in-service event is found. Regarding the third criterion of whether there exists a nexus between the current tinnitus and his hearing loss and service, the Board notes that the Veteran’s service treatment records document no complaints, findings or diagnosis pertinent to tinnitus or hearing loss. At separation in June 1980 clinical evaluation of the Veteran was normal. The Board finds the June 2013 and September 2020 VA examination and opinions to be highly probative. The examiners noted that hearing was within normal limits at entrance and at separation and there were no significant threshold shifts noted from entrance to separation. In addition, the September 2020 examiner noted that noise exposure and head trauma were conceded based on a 1977 medical examination, but there was objective evidence against a nexus. Further, the VA opinion September 2020 found that it was less likely than not that the Veteran had tinnitus that was caused by the claimed in-service injury, event or illness. The examiner noted that a review of the medical literature and noted that hearing loss and ENT problems are not mentioned on the Veteran’s 1977 and 1980 exams, and as such a nexus is not established for tinnitus. The examiner noted that based on a review of the medical literature the notion of delayed onset tinnitus is not supported by the current literature. The examiner noted that per Humes “As the interval between the exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. A more complete understanding of the mechanisms by which tinnitus is generated will be needed for the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected (2005).” As such the examiner found that it is less likely than not that the Veteran’s tinnitus is related to service. As to hearing loss the September 2020 VA examiner noted that it is less likely than not that the Veteran’s current hearing loss was incurred in or caused by the claimed in-service injury, event or illness. The examiner further noted that at entrance to service the Veteran’s hearing was within normal limits bilaterally and at separation in June 1980, his hearing was also within normal limits with no significant threshold shifts. Current hearing loss was previously been established in the right ear. As to the Veteran’s left ear hearing loss the examiner found that it is less likely than not the result of hearing loss in-service. While the examiner noted that noise exposure in-service and a heard trauma in-service has been conceded it is less likely than not that the Veteran’s left ear loss was a result of in-service trauma. The examiner noted that the Veteran’s hearing was within normal limits until 33 years after separation from service. As to the Veteran’s reported right ear hearing loss, the examiner found that it is less likely than not that the Veteran’s right ear hearing loss is related to service. No significant threshold shifts were noted in-service, and while there was an incident of head trauma in August 1977 examination noted no mention of hearing loss or tinnitus. Further at separation there was no mention of hearing loss or tinnitus. Further, based on a review of the medical literature according to the Noise and Military Service Implications for Hearing Loss and Tinnitus, “No Longitudinal studies have examined patterns of hearing loss in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of noise exposure. The Committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely (2005).” The examiner also noted that this study goes on to say “The evidence from laboratory studies in humans and in animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days.” Further the examiner noted, a recent publication from the American College of Occupational and Environmental medicine states that there is insufficient evidence to support that “previously noise exposed ears are not more sensitive to future noise exposure (2018).” They also go on to state: “There is insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued. This is primarily based on a National Institute of Medicine report which concluded that, on the basis of available human and animal data, it was felt unlikely that such delayed effects occur (2018).” As such the examiner found the notion of delayed onset of hearing loss is not supported by the current medical literature and a nexus is not established for either right or left ear hearing loss. As indicated, the Veteran is competent, as a layperson, to report that his personal knowledge, including the onset, presence, and nature of symptoms, to include ringing in his ears. In this regard, there are inconsistent statements by the Veteran regarding the onset of his tinnitus and hearing loss, as he has stated that tinnitus and hearing loss began in service immediately after his sexual assault; however during his discharge examination he denied ever having hearing loss and there was no mention of tinnitus. In addition, the Veteran’s discharge clinical evaluation indicated normal ears, drums and head. The Board finds the Veteran’s statements regarding the onset of his tinnitus and hearing loss to be inconsistent and of less probative value. As such, the Board finds that the medical evidence is more probative and more credible than the lay opinions of record. The Board finds the preponderance of the evidence is against finding a causal nexus between the Veteran's in-service head injury and noise exposure as it relates to the Veteran’s tinnitus and hearing loss. As such the Board finds that service connection is not warranted for hearing loss or tinnitus on a direct basis. The Board has also considered the Veteran’s condition under the presumptive service connection regulations for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Hearing loss and tinnitus both fall with the chronic disease presumptions under other organic diseases of the nervous system. However, the Veteran's conditions were not shown to exist within one year of discharge of active duty service. The Veteran most recently testified at the May 2017 Board hearing that he experienced hearing loss and tinnitus immediately after he was sexually assaulted. However, there are no medical records, or additional supporting evidence of record, to indicate an earlier diagnosis or complaints prior to 2013 (33 years after service). And the Veteran has not provided probative, credible, evidence showing continuity of symptoms. Thus, service connection for hearing loss and tinnitus cannot be granted on a presumptive basis. For the foregoing reasons, the preponderance of evidence is against a finding of service connection for hearing loss and tinnitus is warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.